Daniel Rigoli and Michelle Rigoli v. The Preserve at Bay Hill Estates Homeowners Association, Inc.

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
FOURTH DISTRICT
DANIEL RIGOLI and MICHELLE RIGOLI,
Appellants,
v.
THE PRESERVE AT BAY HILL ESTATES
HOMEOWNERS ASSOCIATION, INC.,
Appellee.
No. 4D2025-1083
[April 1, 2026]
Appeal from the County Court for the Fifteenth Judicial Circuit, Palm
Beach 	County; 	M. 	Katherine 	Mullinax, 	Judge; 	L.T. 	Case 	No.
502023CC010271.
Patrick 	Morgan 	Bailey 	of 	Linkhorst 	Law 	Firm, 	P.A., 	Jupiter, 	for
appellants.
Evan Ross Bachove of Fields & Bachove, PLLC, Palm Beach Gardens,
for appellee.
PER CURIAM .
In 	a 	case 	arising 	out 	of 	a 	dispute 	between 	homeowners 	and 	a
homeowners’ association over alleged violations of the association’s rules,
the homeowners appeal a final order awarding prevailing party attorney’s
fees and costs and an order granting the association’s motion for summary
judgment.
We disagree with the association’s contention that the order granting
summary judgment was an appealable final order. 	An order granting
summary judgment without entry of a final judgment is not an appealable
order. 	See Ho v. Fountains of Palm Beach Condo. Inc., No. 3, 309 So. 3d
237, 238 (Fla. 4th DCA 2020). 	Therefore, the order here was nonfinal
because it contained no language of finality and merely granted the motion
for summary judgment without entering judgment or dismissing the case.
See Rust v. Brown, 13 So. 3d 1105, 1107 (Fla. 4th DCA 2009) (“An order
merely granting a motion for summary judgment is not a final order
because it does not enter judgment for or against a party.”).

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Because the attorney’s fees order was entered prior to a final order
disposing of the lawsuit, the fee order was entered prematurely. 	Ho, 309
So. 3d at 239. For these reasons, we dismiss the appeal to the extent that
it seeks to challenge a nonfinal order granting a motion for summary
judgment; we reverse the fee order “in its entirety as premature.” 	Id. at
238–39.
Reversed in part, dismissed in part, and remanded.
C IKLIN and L OTT , JJ., concur.
GROSS, J., concurs with opinion.
GROSS, J., concurring.
I concur in the majority’s disposition. 	I write only to discuss several
areas of law in the hope that the discussion will curtail some litigation and
reduce the expense to the parties. 	Since this is merely a concurring
opinion, it is not binding on the parties, the trial judge, or this court in
any future appeal.
Without ascribing fault to anyone, I believe this case became more
legally complex than it needed to be. 	I will briefly try to summarize some
background facts.
The case began in 2022 as a disagreement between the homeowners
and the association over the homeowners’ maintenance of their property.
In March 2023, after a presuit mediation, the parties executed a
settlement 	agreement. 	The 	agreement 	contained 	landscaping
requirements, time limits, and procedures for the parties to follow. If both
parties performed under the agreement, the association would waive all
fines that had been imposed, and each side would bear its own attorney’s
fees and costs. 	In the event of “any breach” of the agreement by the
owners, the association was entitled to seek all fines that were imposed,
and 	the 	prevailing 	party 	“in 	any 	litigation” 	was 	entitled 	to 	recover
reasonable attorneys’ fees and costs.
The settlement fell apart. In August 2023, the association filed a three-
count complaint against the homeowners for breach of contract involving
the settlement agreement, breach of contract concerning the governing
association documents, and injunctive relief to compel compliance with
the settlement agreement and association rules and regulations. 	The
contract counts sought damages, including a request “to collect all fines

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that have been imposed against [the homeowners] and their Property as a
result of the violations.”
Among the defenses raised by the homeowners were allegations that
the association’s conduct precipitated some violations and that some
violations were procedurally or substantively incorrect.
In April 2024, the association moved for summary judgment. 	By
written responses, the homeowners vigorously responded. 	A mediated
settlement fell through and the homeowners’ lawyer withdrew. 	The trial
court set the case for trial.
After a hearing, the trial court granted the association’s motion for
summary judgment, based upon its lawyer’s representations that the
association 	was 	“satisfied 	with 	the 	repairs/alterations 	made 	to 	the
[homeowners’] property,” that there were “no further questions for jury
determination,” and that “the claims set forth in the Complaint are now
moot.” 	The court wrote that “the Motion for Summary Judgment is
GRANTED as the case is moot.”
What 	followed 	was 	the 	homeowners’ 	motion 	for 	rehearing 	of 	the
summary judgment order, the association’s motion for attorney’s fees and
costs, the homeowners’ objection to the fee motion, a fee order, a motion
for rehearing of the fee order, a hearing on the motion for rehearing, and
orders denying the motions for rehearing.
At this point, I pause to note that the association’s decision to proceed
by way of a summary judgment motion was curious. A different approach
may have provided a more direct path to ending the litigation.
Had the association chosen to file a notice of voluntary dismissal, a
different path to the “prevailing party” analysis would have materialized.
A determination on the merits is not a prerequisite to an award of
prevailing party attorney’s fees. 	See 51 Island Way Condo. Ass’n v.
Williams, 458 So. 2d 364, 366 (Fla. 2d DCA 1984); State, Dep’t of Health
& Rehab. Servs. v. Hall, 409 So. 2d 193, 195 (Fla. 3d DCA 1982). 	“In
general, when a plaintiff voluntarily dismisses an action, the defendant is
the prevailing party.” Thornber v. City of Ft. Walton Beach, 568 So. 2d 914,
919 (Fla. 1990). Still, a defendant is not automatically the prevailing party
for purposes of attorney’s fees when a plaintiff takes a voluntary dismissal.
Padow v. Knollwood Club Ass’n, 839 So. 2d 744, 746 (Fla. 4th DCA 2003).
Instead, “courts must look to the substance of litigation outcomes—not
just procedural maneuvers—in determining the issue of which party has

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prevailed in an action.” 	Tubbs v. Mechanik Nuccio Hearne & Wester, P.A.,
125 So. 3d 1034, 1041 (Fla. 2d DCA 2013).
For example, where an “[a]ssociation uncompromisingly obtained the
only relief sought on the only issue raised in this litigation: compliance
with the declaration and removal of the encroaching fence,” we held that
“[t]his was sufficient for the Association to be considered the prevailing
party.” 	Isola Bella Homeowners Ass’n v. Clement, 328 So. 3d 1132, 1135
(Fla. 4th DCA 2021). By contrast, the Padow exception to the general rule
does not apply where the defendant does not “cave in to the [plaintiff’s]
demands prior to the voluntary dismissal.” 	Alhambra Homeowners Ass’n
v. Asad, 943 So. 2d 316, 320 (Fla. 4th DCA 2006).
A third option is available in a “prevailing party” analysis when a case
has been voluntarily dismissed. 	This court has held that “[w]here a
plaintiff’s 	voluntary 	dismissal 	results 	in 	neither 	party 	substantially
prevailing in the litigation outcome, neither party is the prevailing party
for purposes of attorneys’ fees.” Kelly v. BankUnited, FSB, 159 So. 3d 403,
407 (Fla. 4th DCA 2015).
On remand, the trial court may wish to reexamine whether the case
was moot. 	Mootness is distinct from a voluntary dismissal. 	“A case is
rendered moot when it no longer presents an actual controversy or when
the issues have ceased to exist because they have been ‘so fully resolved
that a judicial determination can have no actual effect.’” Smulders for 129-
31 Harrison St., LLC v. Thirty-Three Sixty Condo. Ass’n, 245 So. 3d 802,
804 (Fla. 4th DCA 2018) (citation omitted). 	“A moot case generally will be
dismissed.” 	Godwin v. State, 593 So. 2d 211, 212 (Fla. 1992).
Here, 	the 	association’s 	representation 	at 	the 	summary 	judgment
hearing that it was “satisfied with the repairs/alterations made” to the
homeowners’ property does not appear to have rendered the case moot.
The association’s mootness argument looks like a strategic maneuver to
secure a favorable ruling on the motion for summary judgment while
circumventing the entry of a voluntary dismissal.
The case appears to have presented an actual controversy even with
the repairs complete, and the issues were not so fully resolved that a
judicial determination would have had no actual effect.
The association’s breach of contract counts sought damages, including
all fines imposed against the homeowners, which remained a live issue in
the 	case. 	Similarly, 	the 	homeowners’ 	defensive 	argument 	that 	the
association had not properly imposed the fines was still a viable issue that

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survived after the homeowners had completed their landscaping project to
the association’s satisfaction. 	A prevailing party analysis would take into
consideration the homeowners’ success in avoiding a damages award for
the fines sought in the complaint.
Finally, 	the 	association’s 	entitlement 	to 	attorney’s 	fees 	under 	the
settlement agreement was conditioned upon a determination that the
homeowners had breached that agreement, which was never adjudicated,
because the trial court granted summary judgment based on mootness
only.
Here, the trial court may not have given adequate consideration to
whether the association “uncompromisingly” obtained all the relief it had
sought in its complaint.
Perhaps the timing of the association’s mootness argument—raised
about a year after the relevant repairs had been completed—suggested
that the association may have been compromising on some of its demands
when it declared the case moot.
Some of these issues may bear further examination on remand.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.